IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 23, 2002 Session

STATE OF TENNESSEE v. CHARLES EUGENE JONES

Direct Appeal from the Criminal Court of Sullivan County

No. S44,406 Phyllis H. Miller, Judge

No. E2001-01639-CCA-R3-CD

March 12, 2003

The defendant, Charles E. Jones, pled guilty to possession of marijuana with intent to sell or

deliver, possession of drug paraphernalia, and unlawful possession of a weapon. For these

convictions, the trial court classified the defendant as a Range I standard offender and ordered him

to serve an aggregate one year sentence, consisting of concurrent sentences of one year for his

possession ofmarijuana with intent to sell or deliver conviction, eleven months and twenty-nine days

for his possession of drug paraphernalia conviction, and thirty days for his unlawful possession of

a weapon conviction. The state agreed to suspend the two latter sentences, and the trial court

sentenced the defendant to serve four years of probation and one year of incarceration, which was

to be suspended after the defendant served ninety days in the county jail. The defendant now appeals

his sentence, alleging (1) that the trial court erroneously modified his plea agreement with the state

after it had been submitted to the trial court for approval, (2) that the trial court improperly denied

his request to serve the entirety of his sentence on probation, and (3) that the trial court improperly

weighed and applied various enhancement and mitigating factors. After reviewing the record, we

find that none of the defendant’s allegations merit relief and therefore affirm the defendant’s

sentence.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

JERRY L. SMITH,J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS

T. WOODALL, J., joined.

Richard A. Spivey, Kinsport, Tennessee, for appellant, Charles Eugene Jones.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney

General; Greeley Wells, District Attorney General; and Lewis Combs, Assistant District Attorney

General; for appellee, State of Tennessee.
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OPINION

Factual Background

A police officer approached the defendant, who was sitting in a Ranger pick-up truck next

to a gas station pay phone at approximately 12:30 a.m. After identifying himself, the officer asked

the defendant for identification and noticed four baggies of marijuana sitting in the defendant’s

vehicle in plain sight. The officer subsequently arrested the defendant and performed a search

incident to arrest. The search revealed a “roach clip,” rolling papers, and a knife with a blade over

four inches in length. The defendant pled guilty to the above-referenced charges and received a plea

agreement for a one-year sentence for his possession conviction and a suspended sentence for his two

other convictions. The manner of service for the defendant’s one-year sentence was left to the

discretion of the trial court, and the defendant requested probation. The trial court conducted a

probation hearing and subsequently granted the defendant a split-confinement sentence, which

included four years of probation and one year of incarceration. This period of incarceration was to

be suspended after the defendant served ninety days in the county jail. As mentioned supra, the

defendant now appeals his sentence, challenging the authority of the court to give him a sentence of

split-confinement and alleging that the trial court abused its discretion by applying improper weight

to the enhancement and mitigating factors that were applied to his sentence.

Standard of Review for a Trial Court’s Sentence Determination

This Court’s review of the sentence imposed by the trial court is de novo with a presumption

of correctness. Tenn. Code Ann. § 40-35-401(d). However, this presumption is conditioned upon

an affirmative showing in the record that the trial judge considered the sentencing principles and all

relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of correctness and our

review is simply de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

The burden is upon the appealing party to show that the sentence is improper. Tenn. Code

Ann. § 40-35-401(d) (Sentencing Commission Comments). In conducting our review, we are

required, pursuanttoTennesseeCode Annotated section 40-35-210, to consider the following factors

in sentencing: 

(1) the evidence, if any, received at the trial and the sentencing hearing; 

(2) the presentence report; 

(3) the principles of sentencing and arguments as to sentencing alternatives; 

(4) the nature and characteristics of the criminal conduct involved; 

(5) evidence and information offered by the parties on the enhancement and

mitigating factors in §§ 40-35-113 and 40-35-114; and 

(6) any statement the defendant wishes to make in his own behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b).
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An especially mitigated or standard offender convicted of a Class C, D or E felony is

presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the

contrary. Id. § 40-35-102(6). A trial court must presume that a defendant sentenced to eight years

or less who is not an offender for whom incarceration is a priority is subject to alternative sentencing.

State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further presumed that a

sentence other than incarceration would result in successful rehabilitation of the defendant unless

rebutted by sufficient evidence in the record. Id. at 380. This presumption may be rebutted by

evidence demonstrating the defendant’s unfitness for probation or alternative sentencing and may

include the following sentencing considerations: 

(A) Confinement is necessary to protect society by restraining a defendant who has

a long history of criminal conduct; 

(B) Confinement is necessary to avoid depreciating the seriousness of the offense or

confinement is particularly suited to provide an effective deterrence to others likely

to commit similar offenses; or 

(C) Measures less restrictive than confinement have frequently or recently been

applied unsuccessfully to the defendant. 

Tenn. Code Ann. § 40-35-103(1). A court may also apply the mitigating and enhancement factors

set forth in sections 40-35-113 and 114, as they are relevant to the section 40-35-103 considerations.

Id. § 40-35-210(b)(5). Finally, a court should consider the defendant’s potential or lack of potential

for rehabilitation when determining whether to grant an alternative sentence. Id. § 40-35-103(5).

Authority of Trial Court to Sentence Defendant to Serve Four Years of Probation

The defendant contends that the trial court improperly sentenced him to serve four years of

intensive probation after serving ninety days in the county jail. The defendant argues that this

sentence is excessive and exceeded the scope of the his plea agreement in which he agreed to an

aggregate one-year sentence for his convictions, but the manner of service for those convictions was

reserved to the trial court’s discretion. We find that the trial court acted within its purview by

ordering the defendant to serve his sentence in this manner. First, the trial court was not required

to place the defendant on probation for a period of time equal to or less than the maximum amount

period of time to which the defendant had agreed. See Tenn. Code Ann. § 40-35-303(c) (Sentencing

Commission Comments) (“There is no requirement that the duration of probation be the same as the

length of the sentence imposed.”). Moreover, the trial court was required to sentence the defendant

to serve a probationary sentence of at least the length of the minimum sentence that he was eligible

to receive statutorily and not greater than the maximum sentence that he was eligible to receive

statutorily. Id. (“[T]he duration of probation must be the same as the length of the statutory

minimum sentence. Further, even though the length of the actual sentence is restricted to that

required by the particular range, the judge may fix the length of probation up to the statutory

maximum for the class of the offense.”). The defendant agreed to serve a one-year sentence for his

possession of marijuana with intent to sell or deliver conviction, which is a Class E felony with a one
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to six year sentencing range. Id. § 40-35-112(c)(5). Thus, a four-year probationary term falls within

this permissible range. Accordingly, we find that the trial court was authorized, per statute, to

suspend all but ninety days of the defendant’s one-year sentence and subsequent to serving that time,

place him on supervised probation for four years.

Denial of Full Probation

The defendant alleges that the trial court acted improperly by denying his request to be placed

on probation for the entirety of his sentence. The defendant argues that he should have received full

probation because he is presumed, per statute, to be a suitable candidate for alternative sentencing.

However, we find that the trial court acted properly by granting the defendant a sentence of splitconfinement. 

We first note that the record indicates that, when considering the defendant’s request for full

probation, the trial court considered the sentencing principles and all relevant facts and

circumstances. Accordingly, we will afford the court’s findings a presumption of correctness. See

Ashby, 823 S.W.2d at 169. Secondly, we note that because the defendant was convicted of a Class

E felony and received a one-year sentence for that conviction, he is entitled to the statutory

presumption that he is a suitable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-

102(6); Byrd, 861 S.W.2d at 379-80. However, although the defendant is presumed to be a suitable

candidate for alternative sentencing, he still carries the burden of demonstrating that he is a suitable

candidate for full probation. See State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995),

overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000); State v. Jonathan

Thornton, No. E2001-02491-CCA-R3-CD, 2002 WL 31174211, at *5 (Tenn. Crim. App. at

Knoxville, Sept. 30, 2002) (clarifying that, unlike situations where the state bears the burden of

overcoming the presumption that the defendant is a suitable candidate for alternative sentencing, the

defendant bears the burden of proving that he is a suitable candidate for full probation).

While the trial court recognized that the defendant was entitled to a statutory presumption

that he was a suitable candidate for probation, the trial court declined to grant full probation and

instead sentenced the defendant to serve his term in split-confinement. The trial court based its

decision on its finding that the defendant is a poor candidate for rehabilitation because he was

untruthful with the court, did not take responsibility for his actions, and demonstrated no

comprehension of the severity of his offenses. Because the defendant challenges the trial court’s

finding as improper, we will examine the validity of each of the bases for the court’s finding.

During the defendant’s probation hearing, the trial court questioned the defendant, asking him

to expound on several aspects of the circumstances surrounding his offense. In response to the trial

court’s inquiry regarding his reasons for being parked next to a gas station payphone at 12:30 a.m.,

the defendant stated that he was parked at that location during that time because his leg was hurting

and because he had stopped to get something to drink. The trial court found that this explanation

was incredible. Lack of truthfulness is probative on the issue of amenability to rehabilitation and

is, therefore, an appropriate factor to consider when granting or denying probation. State v. Neely,

678 S.W.2d 48, 49 (Tenn.1984). Because the defendant’s truthfulness is an appropriate alternative
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sentencing consideration, we find that this conclusion was an appropriate basis for finding the

defendant to be a poor candidate for alternative sentencing.

When reaching this conclusion, the trial court also appears to have considered the defendant’s

refusal to reveal the name of his drug source. The trial court questioned the defendant directly and

specifically asked him to reveal the name of the person who supplied him with the marijuana that

the police found in his possession. After initially replying that he received the marijuana from a

friend whom he had known for many years, the defendant later refused to reveal the name of his

source, claiming once that he did not remember his friend’s name and then later clarifying that he

did not wish to implicate his friend. The trial court stated that the defendant’s failure to respond

appropriately indicated the defendant’s lack of desire to rehabilitate. The trial court claimed that the

requested information was relevant because it would allow the court to include a prohibition against

any interaction with this individual as a condition of the defendant’s probation.

“It is improper for a trial court to deny alternative sentencing based solely on a defendant’s

refusal to reveal the names of his sources.” See State v. Ricky Keele, No. 02C01-9805-CC-00139,

1999 WL 150871, at *4 (Tenn. Crim. App. at Jackson, Mar. 22, 1999) (recognizing “the possible

jeopardy to safety that could result from this disclosure”). “However, a trial court may consider such

refusal along with other factors in determining whether alternative sentencing is in the best interest

of the defendant and society.” Id. In the instant case, we find that the trial court did not rely solely

on the defendant’s refusal to name his drug source, but that the trial court also considered the

defendant’s lack of candor with the court. Thus, the trial court did not err by considering the

defendant’s refusal to name his drug source when finding him a poor candidate for alternative

sentencing. See State v. Gene Allan Logue, No. W1999-01795-CCA-R3-CD, 2000 WL 1843248,

at *5 (Tenn. Crim. App. at Jackson, Dec. 15, 2000) (citing Ricky Keele and finding that the trial

court acted properly when denying alternative sentencing because the trial court considered the

defendant’s prior criminal record and untruthfulness with the court, as well as his refusal to name

his drug sources); State v. Alexander A. Lee, No. W1999-01086-CCA-R3-CD, 2000 WL 705296,

at *4 (Tenn. Crim. App. at Jackson, May 26, 2000) (citing Ricky Keele and finding that the trial

court acted properly when denying alternative sentencing because the trial court considered “other

factors, such as seriousness of the offense and effective deterrent”); State v. Nora McFall, No.

W1999-01086-CCA-R3-CD, 2000 WL 705296, at *3 (Tenn. Crim. App. at Jackson, May 26, 2000)

(citing Ricky Keele and finding that the trial court did not rely solely on the defendant’s refusal to

reveal the names of his sources);Ricky Keele, 1999 WL 150871, at *3-*4 (finding that the trial court

did not rely solely on the defendant’s refusal to reveal the name of his drug source when denying

alternative sentencing, but that the trial court also considered the defendant’s prior convictions and

his honesty with the court). Therefore, the defendant’s allegation lacks merit.

Enhancement and Mitigating Factors

The defendant argues that the trial court inappropriately applied an enhancement factor and

failed to apply certain applicable mitigating factors when determining whether to sentence him to

serve a portion of his sentence in incarceration. When sentencing the defendant, the trial court

applied one enhancement and two mitigating factors to the defendant’s case. 
1

The 2002 amendment to Tennessee Code Annotated section 40-35-114 added a new enhancement

factor (1) and redesignated the previous enhancement factors (1) through (22) as (2) through (23), respectively. See

Tenn. Code Ann. § 40-35-114 (Supp. 2002). Because the defendant’s probation hearing was held in 2001, we will refer

to the section numbers in effect at the time of the defendant’s hearing.

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Turning first to the challenged application of the enhancement factor, we observe that the

trial court applied enhancement factor (1),1 that the defendant had a previous history of criminal

convictions or criminal behavior, to the defendant’s sentence. Tenn. Code Ann. § 40-35-114(1).

The trial court found the defendant’s previous conviction, a 1973 conviction for driving while under

the influence, was applicable to enhance his sentence. Furthermore, although the defendant

complains that the trial court should not have done so, the court appropriately considered the

defendant’s long-term marijuana use, over twenty years of use according to the defendant, under this

enhancement factor. See, e.g., State v. John Robert Goodale, No. M2000-02140-CCA-R3-CD, 2001

WL 1077965, at *15 (Tenn. Crim. App. at Nashville, Aug. 15, 2001) (“While we share the

defendant’s concern that [an admission of past marijuana use] in a pre-sentence report, without

further proof, can serve as an enhancing factor, it is clear that the defendant’s marijuana use does

constitute ‘criminal behavior.’”). After finding these factors applicable under this enhancement

factor, the trial court then concluded that it would afford this factor great weight. According to

Tennessee Code Annotated section 40-35-114(1), a trial court may enhance a defendant’s sentence

by considering his previous convictions and prior criminal behavior. Tenn. Code Ann. § 40-35-

114(1). The defendant admits and the record reflects that he has one prior conviction, the DUI

mentioned above, and that he told the court that he had used marijuana for over twenty years. Thus,

we find that these facts may be considered under this enhancement factor and that the trial court

appropriately applied this enhancement factor to the defendant’s sentence. 

The defendant also challenges the trial court’s decision to weigh this enhancement factor

heavily. However, the weight applied to each enhancement or mitigating factor is not prescribed

by statute, but is left to the sound discretion of the court, provided the court’s decision is supported

by the record and comports with the sentencing principles. See State v. Santiago, 914 S.W.2d 116,

125 (Tenn. Crim. App. 1995). We find that the trial court’s determination of this factor’s

applicability and the weight that the court afforded this factor are supported by the trial court’s

findings on the record, namely that the defendant’s prior conviction and long-term marijuana use

indicate the defendant’s life-long struggle with substance abuse and that the defendant had not

demonstrated a willingness to overcome his problem.

Turning next to the mitigating factors applied to the defendant’s sentence, the trial court

found that mitigating factor (1), that the defendant’s conduct neither caused nor threatened to cause

serious bodily injury, was applicable to the defendant’s sentence, as well as the non-statutory

mitigating factor that the defendant received an honorable discharge from the military. See Tenn.

Code Ann. § 40-35-113(1), (13). However, the trial court noted that it would afford these mitigating

factors little weight, as they were “far” outweighed by the applicable enhancement factors. The

defendant challenges this decision, arguing that the trial court failed to afford these two mitigating

factors appropriate weight. Again, we note that the weight applied to each mitigating factor is left

to the discretion of the trial court, provided that the decision is supported by the record and is in

accord with our sentencing principles. See Santiago, 914 S.W.2d at 125. The trial court’s decision
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to afford mitigating factor (1) little weight was appropriate in light of this Court’s holding that this

factor is generally entitled to little weight. See, e.g., State v. Haley B. Upchurch, No. M2001-03170-

CCA-R3-CD, 2002 WL 31014840, at *1 (Tenn. Crim. App. at Nashville, Sept. 9, 2002). Moreover,

the police discovered the defendant with marijuana in his possession while he was sitting in the

driver’s seat of his parked vehicle, a circumstance that tends to bolster the trial court’s decision to

afford this factor little weight. Regarding the trial court’s decision to afford the defendant’s

honorable military discharge little weight, the trial court was not required to consider the defendant’s

honorable discharge as a mitigating factor and therefore did not err by considering the factor but

giving it little weight. See State v. Ronald Collier, No. 02C01-9402-CC-0029, 1994 WL 542973,

at *3 (Tenn. Crim. App. at Jackson, Oct. 5, 1994) (“[T]his Court has not yet held that the recognition

of an honorable discharge as a mitigating factor is mandatory.”).

Finally, the defendant argues that the trial court failed to consider his work history as an

applicable non-statutory mitigating factor. See State v. Kelley, 34 S.W.3d 471, 483 (Tenn. Crim.

App. 2000). The trial court found that the defendant had a good work history, as opposed to an

excellent work history, and therefore stated that the “excellent work history” mitigating factor did

not apply to the defendant’s case. While a “good” work history is sufficient to allow mitigation of

a defendant’s sentence, the weight afforded to the factor may be “relatively slight.” See State v.

Jonathan D. Rosenbalm, No. E2002-00324-CCA-R3-CD, 2002 WL 31746708, at *10 (Tenn. Crim.

App. at Knoxville, Dec. 9, 2002). Therefore, although the trial court could have decreased the

defendant’s sentence by applying this factor, we infer that the court would have given the factor little

weight based on its discussion of the factor on the record. 

In sum, we find that the defendant’s sentence of split-confinement is supported by the

application of the enhancement and mitigating factors outlined above.

Conclusion

The judgment of the trial court is AFFIRMED.

___________________________________ 

JERRY L. SMITH, JUDGE